9911796707
TMI Blog2022 (10) TMI 636X X X X Extracts X X X X X X X X Extracts X X X X ..... s delivered before 03.08.2021 which may be either on 27.07.2021 or 20.07.2021. The track record clearly shows that the item is delivered. Hence, when the office was functioning at Vishakhapatnam by 20.07.2021 and 27.07.2021 it has to be assumed that the notice was delivered. Due to the said fact not being brought to the notice of the Court during the hearing of the Interlocutory Application filed seeking to set aside the ex-parte order, the Tribunal relied on the dates mentioned in the application and observed as such. But considering the track record, it has to be held that the notice was duly served on the Corporate Debtor - this point is answered by holding that Form-3 notice was duly served on the Corporate Debtor. However the same might have lost sight of the concerned due to the work of shifting the office having been going on. Whether the Operational Creditor could prove the debt and whether the same is acknowledged by the Corporate Debtor? - HELD THAT:- Since the burden of proving the debt is on the OC, he fails due to non filing of any supporting documents to the invoices. Failure to reply to the demand notice, has an assumed reason. Moreover mere failure to reply, do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... countant which are maintained in the regular course of business. 4. The provisional balance sheet for the period 01.04.2021 to 31.05.2021 of the CD shows that as on 31.05.2021, the liabilities both the sundry creditors and Statutory Liabilities are together to an extent of Rs. 3,15,94,568/-. On the basis of the said balance sheet, the present management acquired the equity shares of the CD in terms of share purchase agreement. Some of the members on Board resigned, a Board was reconstituted with Mr. Vatsavi Venkata Subramanyam Varma and Mrs. Geetha Durga Bhavani Gandreddy. They were appointed as Addl. Directors of the Board. Later Mr. Vatsavi Venkata Subramanyam Varma came to be the sole owner. They shifted the registered office of the CD from Visakhapatnam to Vijayawada w.e.f. 03.08.2021. The same was brought to the notice of the Ministry of Corporate Affairs (MCA) and Form INC-22 was filed by the new management. 5. There is no debt due to the OC from the CD as per the account of the CD, which is handed over to the present management by the earlier Board. As per the Ledger Account, a sum of Rs. 18,68,579/- is payable by the CD to the OC. Last entry of payment is 24.09.2020 f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the application is filed on 01.09.2021 after lapse of more than ten days. The other circumstances raised by the CD does not merit any consideration hence, the Company Petition needs to be admitted. 9. Heard the arguments of both the Counsel and perused the written submissions filed on either side. The important contentions that are raised on behalf of the Corporate Debtor are that notice in Form-3 as mandated by Section 8 is not served and hence, the application is liable to be dismissed in limine. The observations of this Tribunal in the order dated 14.03.2022 setting aside the ex-parte order against the Corporate Debtor would support the contention of the Corporate Debtor. Secondly no material documents are placed on record except invoices which are blank in all material aspects and no acknowledgement is there with regard to the supply of the goods to the Corporate Debtor. The claim amount is disputed. The due amount is only Rs. 18,68,579/- which is liable to be adjusted against damaged goods. The Counsel for the Operational Creditor contends that the track record shows the due service of notice in Form-3 and the invoices amply evidence the supply of goods and they are suppo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taken by the Corporate Debtor is that the notice was not served on the responsible officer or employee of the Corporate Debtor since, the management of the Corporate Debtor has changed in the course of the time. It is not contended that the office was shifted by then. Hence, this point is answered by holding that Form-3 notice was duly served on the Corporate Debtor. However the same might have lost sight of the concerned due to the work of shifting the office having been going on. Point No. II: The Operational Creditor, as already observed, has been ordered into Corporate Insolvency Resolution Process (CIRP) and this application is preferred by the Resolution Professional (RP) appointed by the Tribunal. During the course of CIRP it came to the notice of the RP that a debt was due from the Corporate Debtor. Hence, this application is filed. The claim is based on certain invoices which are admittedly not accompanied by any purchase orders and are not acknowledged by the Corporate Debtor. The ledger account filed by the Corporate Debtor and the Operational Creditor does not match with regard to the cash payments allegedly made by the Corporate Debtor. The contention of the Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
